family law south africa


Should I have an ANC if I am getting married in a few weeks’ time?

A brief discussion of the ANC and the purpose of an ANC.

Most couples in preparing to tie the knot leave this question until very late in their wedding preparations. The writer on occasion in the past had to arrange for an ANC on the preceding Friday afternoon before the Saturday wedding at 10 am. That is cutting it fine.

During the excitement of a couple's impending wedding; it is easy to forget about the aspect of an ante-nuptial contract. It is however vitally important that you and your future spouse discuss the matrimonial property regime best suited to your financial needs from the date that you are married.

Why an ante-nuptial contract?

In terms of South African law, (Matrimonial Property Act, 88 of 1984) your marriage will automatically be registered as being “in a community of property” if you do not conclude an ante-nuptial contract.

Being married in community of property means that the assets and liabilities of the spouses are pooled together into one joint estate, regardless of whether the assets or liabilities were acquired prior to or during the subsistence of the marriage, or by which one of the spouses it was acquired or incurred. You and your spouse, therefore, each own an undivided half-share of the joint estate (assets and liabilities). The spouses must consent to certain transactions being done within the joint estate, for example buying a house or a car. Creditors of either spouse can collect the debt of that spouse against the joint estate, and this situation can put the family unit at risk.

What are the alternatives in an ANC regime?

Prospective spouses have the option to conclude an ante-nuptial contract in terms of which they choose a matrimonial property system other than the community of property. This contract is registered in the deeds office against each spouses’ name and provides a measure of security against creditors of the other. This is especially necessary and important if one of the spouses conducts business in his personal capacity.

The ante-nuptial contract can specify that the parties are married out of community of property with or without application of the accrual system.

The accrual system was introduced to provide a fair division of assets accumulated during the marriage, especially where one spouse stayed at home to raise the children, for example.

If the accrual system is excluded, the assets and liabilities of each spouse remain their own, regardless of whether it was accumulated prior to or during the marriage. A specific formula is prescribed in terms whereof accrual and the accrued assets of the spouses are divided.

The ante-nuptial contract should only be drafted by a notary public (specialist attorney), who must co-sign the contract with the prospective spouses. The contract is then registered against the names of the prospective spouses at the deeds office.

Do not be caught off guard by neglecting this important aspect of your marriage and please do so timeously so as to avoid a mad rush just before your wedding.

It is important to note that the ANC only has to be executed before the notary before the wedding; who then usually provides the couple with proof that it has been executed.

It can be registered in the Deeds Office after the date of the marriage.

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About our author:

Hugh Pollard (Legal Consultant), has a BA LLB and 42 years’ experience in the legal field. 22 years as a practising attorney and conveyancer; and 20 years as a Legal Consultant.

082-0932304 (Hugh’s Cell Number)

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